United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE.
the Court is Defendants' Motion to Exclude the Opinions
of Expert Witness Christopher J. Bokhart (ECF No. 230).
Defendants have asked the Court to exclude Mr. Bokhart's
damages opinions in their entirety. The Court heard extensive
argument on this motion over two days. The motion was denied
as to Bokhart's testimony regarding patent infringement
damages and the Court reserved ruling with respect to trade
secret misappropriation and copyright infringement damages.
This order resolves the motion as to to Mr. Bokhart's
opinion on copyright infringement damages.
to Rule 702 of the Federal Rules of Evidence, the Court is
obliged to serve as a gatekeeper regarding the admission of
expert testimony. See United States v. Diaz, 300
F.3d 66, 73 (1st Cir. 2002); see also Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993). “A trial
court has broad discretion to admit or exclude expert
testimony based on its determination as to the reliability
and relevance of the proffered expert testimony.”
Morris v. Rhode Island Hosp., C.A. No. 13-304-ML,
2014 WL 3107296, *5 (Jul. 7, 2014) (citing Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 143 (1997)).
Alifax were to prove copyright infringement, the Copyright
Act requires the copyright owner “to present proof only
of the infringer's gross revenue . . . .” 17 U.S.C.
§ 504(b). In the context of this statute, the phrase
“gross revenue” has been interpreted as
“gross revenue reasonably related to the infringement,
not unrelated revenues.” On Davis v. The Gap,
Inc., 246 F.3d 152, 160 (2d Cir. 2001), as amended May
15, 2001 (emphasis added); see also MGE UPS Sys., Inc. v.
GE Consumer & Indus., Inc., 622 F.3d 361, 367 (5th
Cir. 2010) (“‘[G]ross revenue' refers only to
revenue reasonably related to the infringement.”);
William A. Graham Co. v. Haughey, 568 F.3d 425, 443
(3d Cir. 2009) (“[T]o satisfy its initial burden of
proof, [plaintiff] was required to prove only that the
profits it sought to recover were reasonably related to the
infringement.”) (quotations omitted). Here, Mr. Bokhart
opines that Alifax is entitled to the revenues for all iSED
analyzers and convoyed sales as damages for copyright
infringement. See, e.g., Expert Rpt. of Christopher
J. Bokhart ¶ 199, ECF No. 237; Suppl. Expert Rpt. of
Christopher J. Bokhart ¶ 11, ECF No. 237-1.
Court finds that Mr. Bokhart's opinion is not reasonably
related to the alleged infringement and is therefore
speculative and not admissible. See Joiner, 522 U.S.
at 146 (“[N]othing in either Daubert or the Federal
Rules of Evidence requires a district court to admit opinion
evidence that is connected to existing data only by the ipse
dixit of the expert.”). The infringement-related
conclusions of Plaintiff's technical expert, Dr. Bryan
Bergeron, are the exclusive link between Mr. Bokhart's
opinion and the scope of the alleged harm. See
Bokhart Rpt. ¶ 44 nn. 97 & 98 (citing discussions
with Bryan Bergeron). The Court has carefully reviewed both
experts' disclosures. Dr. Bergeron initially opined that
eleven iSED units may have infringed on Alifax's
copyright. See Decl. of Bryan Bergeron, M.D. ¶
2, ECF No. 163-18. In his March 8, 2019 supplemental report,
Dr. Bergeron reduced that number to “at least four iSED
instruments.” Suppl. Expert Rpt. of Bryan Bergeron,
M.D. ¶ 9, ECF No. 231-1. Dr. Bergeron has never opined
that all iSED units and related materials infringe on
Alifax's copyrights. And Mr. Bokhart has never narrowed
his damages opinion to reflect gross revenues from only four
revenues from the sale of all iSED units and related
materials (the basis of Mr. Bokhart's damages
calculation) are not reasonably related to the alleged harm
caused by four infringing units. The “analytical
gap” between Mr. Bokhart's proffered opinion and
the facts of this case is simply too great to permit.
See Joiner, 522 U.S. at 146. Mr. Bokhart already
issued a supplemental report in this action, and while
Plaintiff's counsel at oral argument on this motion -
just days before trial - offered to provide another one, the
Court declines to permit this fundamental shortcoming to be
remedied on the eve of trial by any eleventh-hour
disclosures. See Fed.R.Civ.P. 26(a)(2)(D) (i)- (ii)
foregoing reasons, Defendants' Motion to Exclude the
Opinions of Expert Witness Christopher J. Bokhart (ECF No.
230) is GRANTED IN PART. Mr. Bokhart's copyright damages
opinion is hereby EXCLUDED. Defendants' request to
exclude Mr. Bokhart's trade secret damages opinion
remains under advisement; the Court may issue a ruling before
trial. Consistent with the Court's bench ...